Prosecutors followed law in Scherf death penalty case

EVERETT — Prosecutors followed the law two years ago when they reached a swift decision to seek the death penalty for a convicted rapist who is accused of killing a Monroe corrections officer, a Snohomish County judge ruled Monday.

Lawyers for Byron Scherf claimed his rights were violated in 2011 by Prosecuting Attorney Mark Roe’s decision to include capital punishment as one option for jurors to consider if Scherf is convicted.

Defense attorneys Jon Scott and Karen Halverson urged Snohomish County Superior Court Judge George Appel to remove a death sentence as one potential outcome for the case.

They argued Roe abused his discretion by not providing Scherf’s lawyers sufficient time to make a case for mercy after he allegedly strangled corrections officer Jayme Biendl.

Scott told Appel it has been an “evolving practice” for prosecutors in potential capital cases to delay making a decision until hearing from the defense about potential evidence that could mitigate.

State law requires prosecutors to provide written notice of intent to seek the death penalty within 30 days of a defendant being arraigned for aggravated murder.

Scherf was arraigned March 16, 2011. Prosecutors filed the notice of intent to seek a death sentence the same day.

Appel agreed, and said that evolving practice and statutory requirements aren’t the same thing. He also said the defense had failed to show that Roe abused the discretion reserved for prosecutors under the law.

“There has been nothing that has been demonstrated so far that indicates the Constitution has been violated,” the judge said.

Biendl was killed Jan. 29, 2011, in an ambush attack in the chapel at the Washington State Reformatory in Monroe. Scherf was found seated outside the killing scene. Within days he provided detectives videotaped statements, admitting responsibility and claiming remorse, according to court papers.

A repeat rapist, Scherf already was serving a life sentence under the three-strikes law when Biendl was killed. Roe said he reviewed nearly 6,500 pages of police reports about the killing and records about Scherf’s decades in prison before deciding that jurors should have the option of considering death for the defendant.

On Monday, Scott repeatedly told the judge that he’d reviewed the same materials and they were “chock full” of evidence that could support mercy for Scherf.

Appel asked whether the defense team had considered submitting mitigating evidence after Roe announced his decision.

Fine said the prosecutor would be open to hearing more from the defense. Scott, however, said that the only appropriate outcome would be for Appel to bar the state from seeking his client’s death.

Scherf’s lawyers in 2011 made nearly identical arguments about Roe’s handling of the death penalty decision, also without success. They plan to appeal.

A pair of King County Superior Court judges recently sided with defense attorneys who raised similar challenges in unrelated murder cases there.

The decisions have effectively stopped the capital-murder prosecutions of Joseph McEnroe and Michele Anderson, who are accused of killing her family near Carnation in 2007, and Christopher Monfort, who is charged with the 2009 killing of Timothy Brenton, of Marysville, who was a Seattle police officer.

King County prosecutors are appealing to the state Supreme Court.

Jury selection in Scherf’s trial is scheduled to begin early next month.